Smith v. Gould , 110 W. Va. 579 ( 1931 )

I have no quarrel with the majority of the Court merely for disagreeing with my personal expression in the last paragraph of the opinion in Keller v. Ry. Co., 109 W. Va. 522, 528,156 S.E. 50, 52-3. I regret the disagreement, of course, but I find companionship with other jurists, such as Cardozo, who said in 1930: "The doctrine of the last clear chance, however, is never wakened into action unless and until there is brought home to the defendant to be charged with liability, a knowledge that another is in a state of present peril." Woloszynowski v. Ry.Co., (N.Y.) 172 N.E. 471-2. See also the strong opinions of Judge Williams in Todd v. Ry. Co., (Tenn.) 185 S.W. 62, and Judge (now Justice) Van Devanter in Denver Co. v. Cobb. 164 F. 41.

I cannot agree with the majority opinion, because (with all deference) it seems to me to be illogical, to be inconsistent with the common law doctrine of contributory negligence to which we are pledged by our constitution, to be inconsistent with our own decisions and to be inconsistent with most of the very cases cited in the opinion. It seems illogical to impute knowledge of the situation to the motorist, and not impute like knowledge to the pedestrian, when she had equal opportunity with the motorist of acquiring the knowledge. It seems illogical to hold that due care by the defendant would have prevented the accident and yet ignore the correlative fact that due care by Mrs. Smith would also have prevented it. Nashua Co. v. Rr. Co., 62 N.H. 159, 165. It seems illogical (except under the doctrine of comparative negligence) to condone the absent-mindedness of Mrs. Smith at a certain point, but not excuse the inattention of the defendant at the same point. ("It does not deal between the parties with equality." Emmons v. Southern Pac. Co., 97 Or. 263,285.) It also seems illogical to bring the instant case under the doctrine of the last clear chance at all, because "the whole theory of the doctrine is based upon and confined to conduct subsequent to the discovery of the danger." Penn. R.Co. v. Swartzel, 17 F.2d 869, 870. "It would seem that the true test is the existence of the last opportunity of avoiding the accident." Salmond, Law of Torts (4th Ed.), 43; Pollock, the Law of Torts, (13th Ed.), 474-5, 484; 1 Street, Foundations of Legal Liability 126, 136. The majority opinion is inconsistent with Carrico v. Ry. Co., 35 W. Va. 389, 398, which holds: "In regard to contributory negligence the law is well settled in this state. The general rule is that if the negligence is mutual there can be no recovery." (Two exceptions to the general rule are then stated but the instant case does not come within either.) The opinion is inconsistent withRiedel v. Traction Co., 63 W. Va. 522, which holds: "It is incumbent upon both parties to exercise care and when it is apparent that both have been negligent and their negligence is concurrent or co-incidental so that the negligence of neither can be regarded as having been the proximate cause of the injury, no damages can be recovered." (In relation to proximate cause it should be noted: "The doctrine of last clear chance does not abrogate any of the rules of proximate cause." Locke v. R. P. Co., 100 Wash. 432, 437. "In determining whether the cause of an accident is proximate or remote, the same test must be applied to the conduct of both parties." Rider v.Ry. Co., 171 N.Y. 139; 45 C. J. 972.) The opinion is inconsistent with Waller v. Ry. Co., 108 W. Va. 576, 585, in which, after demonstrating that the injured parties had an equal or better possibility of seeing the train than the enginemen had of seeing the automobile, the court said: "On that basis their continuing contributory negligence would eliminate application of the doctrine of last chance." The opinion is inconsistent with Keller v. Ry. Co., supra, which holds: "Where a plaintiff is negligent and his negligence concurs and cooperates with that of the defendant as a proximate cause of the injury complained of, he cannot recover." The opinion is inconsistent in relying on such cases as Riedel v. Traction Co., 69 W. Va. 18; Schoonover v. R. R.Co., 69 W. Va. 560, and kindred cases, since these cases have been deliberately classified as "speculative" and founded on "casuistry" by this Court in its opinion in the Keller case, decided just six months ago. It would seem that the versatility of our decisions on this subject is even now somewhat disconcerting to the bar, and that further involvement should be avoided. See the well considered articles by Harriet French of the Bluefield Bar in the February, 1930, issue of the West Virginia Law Quarterly, and by Robert Donley of the Morgantown Bar in the June, 1931, issue of same publication.

The case of Dent v. Bellows Falls St. Ry. Co., (Vt.)116 A. 83, quoted in the majority opinion, does recognize the doctrine of imputed knowledge, but the conclusion of the majority (in the instant case) is not in harmony with the definition given in the syllabus (point 4) of the Vermont case which is: "The last clear chance doctrine presupposes a perilous situation, created or existing through the negligence of both plaintiff and defendant, but assumes that there was a time after such negligence had taken place when the defendant could, and the plaintiff could not by use of means available avert the accident." (In the instant case, there was no time when Mrs. Smith could not — by looking — have averted the accident as well as the defendant.) The Vermont court has expressly refused to extend this doctrine to cases of actively concurring negligence. "The last clear chance rule does not apply where the plaintiff's negligence is concurrent and of the same degree as that of the defendant." Aiken v. Metcalf, 92 Vt. 57.

The Kentucky cases cited in support of the doctrine of constructive knowledge, do support the conclusion of the majority; but the quotation from Weidner v. Otter, shows beyond peradventure that the Kentucky rule is based squarely on the doctrine of comparative negligence — a doctrine which the majority refuses to recognize openly.

Consol. R. Co. v. Armstrong, (Md.) 48 A. 1047, cited in the majority opinion, affords it no support whatever, because in that case the court found in favor of the defendant railroad company in view "of the undoubted contributory negligence of the plaintiff without which the accident would not have occurred and the practical absence of evidence tracing the cause of the injury to the negligence of the defendant's agents." Maryland may favor the doctrine of imputed knowledge, but the holding of that court does not favor the extension made by the majority in the instant case. "Contributory negligence bars recovery, when proximate cause of injury * * * negligence is proximate cause of injury when party injured, by the exercise of ordinary care, might have avoided the consequences of the negligence of the other party." Ry. Co. v. Price,29 Md. 420, 96 Am. Dec. 545.

The majority conclusion is opposed by Gibbard v. Cursan, (Mich.) 196 N.W. 398, (another case cited in the opinion in support of the doctrine of imputed knowledge) which holds: "The doctrine of gross, subsequent or discovered negligence may not be invoked to excuse concurrent negligence of the plaintiff."Burke v. Pappas, (Mo.) 293 S.W. 142, supports the majority opinion in all respects. Prior to 1907, the Missouri court seems to have upheld fully the common law conception of the bar of contributory negligence. See the case of Hornstein v. Rys.Co., (Mo.) 4 L.R.A. (N.S.) 729, decided in 1906. But in 1907, a statute was enacted by the legislature of Missouri, which, in effect, repealed the common law rule of contributory negligence by imposing upon the operator of an automobile on a public road or street "the highest degree of care that a very careful person would use under like or similar circumstances to prevent injury," and by making such operator liable in damages for failure to use such degree of care, unless the injury was caused "by the direct negligence of the injured or deceased person contributing directly thereto." Revised Statutes, Missouri 1909, sec. 8523. This statute has been modified from time to time but it still exacts of the operator of an automobile "the highest degree of care". Revised Statutes, Missouri 1930, sec. 7775. So, it appears that the present position of the Missouri court must be attributed largely, if not entirely, to a statute which we do not have in West Virginia.

The majority conclusion is opposed by Nehring v. Conn. Co.,84 A. 301, 86 Conn. 109, (also cited in support of the doctrine of imputed knowledge) which holds: "Where the plaintiff's negligence continues as an active agency in producing the resulting injury down to the time of its occurrence, or until it is too late for the defendant in the exercise of reasonable care to save him, his conduct must be regarded as a concurring efficient cause, proximate and not remote, of the injury. To hold that in such a case the plaintiff could recover for the injury would be to ignore the fundamental principle of the law of contributory negligence."

The supreme court of Kansas supports the majority opinion on the doctrine of imputed knowledge, as shown by the cited case of Muir v. Fleming, 227 P. 536; but the Kansas court (like the courts of Vermont, Connecticut and Michigan) opposes the conclusion of the majority, because of actively concurring negligence of the injured party. "A plaintiff who has received an injury occasioned by the negligence of the defendant, but who could have avoided it by the exercise of ordinary care on his own part, cannot recover damages therefor, although the defendant ought to have discovered (but did not in fact discover) his peril in time to have prevented the accident, where the plaintiff's negligence continued up to the very moment he was hurt, and where the exercise of reasonable diligence before that time would have warned him of his danger and enabled him to escape by his own effort." Dyerson v.Railroad Co., 74 Kan. 528, 529.

West Const. Co. v. Ry. Co., (N.C.) 116 S.E. 3, (cited by the majority) was an action for trespass to personal property — a case not aptly chosen to support an innovation on the humanitarian doctrine of the last clear chance. I will admit, however, that North Carolina does subscribe to the doctrine of imputed knowledge. Gunter v. Wicker, 85 N.C. 310; McLamb v.Rr., 122 N.C. 862, 873. (But see page 874 where it is held that the same degree of care is required of one party as of the other.) The quotation from Chase v. TaxicabCo., (Wash.) 139 P. 499, also supports the majority on the doctrine of imputed knowledge. But the Washington court (like the courts of Vermont, Michigan, Connecticut and Kansas) opposes the majority conclusion in cases of actively concurring negligence. "Thus we have two different situations to which the last clear chance rule applies. In the one, the plaintiff's negligence may continue up to the time of the injury if the defendant actually sees the peril; in the second, the plaintiff's negligence must have terminated if the defendant did not actually see the peril, but by the exercise of reasonable care should have seen it." Leftridge v. Seattle,130 Wash. 541, 545.

The case of Standard Oil Co. v. McDaniel, (D. of C.) 280 F. 993, supports the majority on the doctrine of imputed knowledge. But this case loses in persuasive authority, because the District of Columbia is under federal control and the federal statute has abolished in part the common law rule of contributory negligence. The quotation from Kansas CitySouthern Ry. v. Ellzey, 275 U.S. 236, seems to require a negligent defendant to have "in fact a later opportunity than the plaintiff to avert an accident" before applying the doctrine of last clear chance. If so, that case has no application to the instant case.

The majority conclusion is opposed by Southern Ry. Co. v.Bailey, 67 S.E. 365, 110 Va. 833 (also cited in support of the doctrine of imputed knowledge) which holds: "But this doctrine has no application to a case where both parties are equally guilty of an identical duty, the consequences of which continue on the part of both to the moment of the injury and proximately contribute thereto."

The majority conclusion is opposed by Roanoke Co. v. Carrol, (Va.) 72 S.E. 125, 128, (also cited in support of the doctrine of imputed knowledge) which holds: "The doctrine is one of prior and subsequent negligence, or remote and proximate cause, and presupposes the intervention of an appreciable interval of time between the prior negligence of the plaintiff and the subsequent negligence of the defendant. Where the negligence of both continues down to the moment of the accident and contributes to the injury, the case is one of concurring negligence and there can be no recovery."

The majority conclusion is opposed by Green v. Ruffin, 125 S.E. 742, 141 Va. 628, (cited in support of the doctrine of imputed knowledge) which holds: "The doctrine of last clear chance is a duty imposed by law on both the plaintiff and defendant. If being in plain view of each other and with equal opportunity to prevent the accident, they are guilty of concurring negligence, there can be no recovery."

C. O. Ry. Co. v. Corbin's Admr., (Va.) 67 S.E. 179, (181), supports the majority opinion as to imputed knowledge ("discovered peril") merely through dicta, as the court said that "the jury would have been warranted in drawing the inference from the evidence that the engineer had actual knowledge of Corbin's peril." McGowan v. Tayman, (Va.)132 S.E. 316, and Barnes v. Ashworth, (Va.) 153 S.E. 711, are the main cases relied upon by the majority. The McGowan case cites Shearman Redfield on Negligence, (5th Ed.), sec. 99. This section does not support either the McGowan or the instant decision, and section 101 distinctly repudiates them, saying: "The foregoing rule (last clear chance) obviously does not apply where the plaintiff's contributory negligence is in order of causation either subsequent to or concurrent with that of defendant." The McGowan case also cites Wilson's Admr. v. Ry.122 Va. 262, and Va. R. P. Co. v. Smith, 129 Va. 269. Insofar as the Wilson case supports the McGowan case it is by dicta as point 4 of the syllabus in the Wilson case shows that the brakeman (on a moving car) had actual knowledge of the danger of the injured person and that he was heedless of his danger. The holding in the Va. R. P. Co. case is inconsistent with its own declaration of the law as made in point 5 of the syllabus, which is as follows: "Upon the principle that one will be charged with notice of that which by ordinary care he might have known, it is held that if either party to an action involving the questions of negligence and contributory negligence should, by the exercise of ordinary care, have discovered the negligence of the other after its occurrence in time to forsee and avoid its consequences, then such party is held to have notice." If both parties are negligent and each should have discovered the negligence of the other, as in the instant case, then both must be held to have had notice, if the law is to be applied without discrimination. The McGowan case was decided in March, 1926, and just one month later, in April, 1926, the Virginia court decided the case of Bassett Co. v. Wood, 132 S.E. 700, which makes assertions utterly at variance with theMcGowan and the instant decision, viz: "There is really no distinction between negligence in the plaintiff and negligence in the defendant, and where their negligence concurs to produce the injury there can be no recovery. * * * The doctrine of last clear chance, strictly speaking, applies only to those cases where the negligence of the parties contribute or concur to cause injury, but before damage is inflicted, one or other of the parties has time and opportunity to avoid the injury and fails to do so." (pp. 703 and 705). The McGowan case does not explain the defection of the Virginia court from such of its decisions as Traction Co. v. Martin's Admr., 102 Va. 209;Brewing Co. v. Doyle, 102 Va. 399; Lime Co. v. Affleck'sAdmr., 115 Va. 643; McMamara v. Rainey Corp., 139 Va. 199, decided in 1924, which held: "There is no reason why the defendant should not have the benefit of the last clear chance doctrine as well as the plaintiff. * * * even though the driver of defendant's car was running at an excessive rate of speed and was negligent in not keeping a proper outlook, this did not excuse the plaintiff for putting himself in the way of an oncoming dangerous instrumentality, which by the exercise of ordinary care he should have discovered in time to have avoided the collision." The effect of the McGowan decision, however, is modified if not discredited by the later case of Meade v.Saunders, 151 Va. 636, decided in September, 1928, which holds: "Where a car and a pedestrian are traveling at right angles, and their paths must cross only a few feet ahead, and there is a clear view and the pedestrian has seen the approaching car, a collision under such circumstances can only arise as the result of the concurring or independent negligence of the plaintiff. If the continuing negligence of a plaintiff, up to the time of the injury, concurs with the negligence of the defendant in causing the injury, the plaintiff cannot recover." The facts in that case differ from the facts in the instant case merely in that Mrs. Smith did not see the defendant's car approaching. That difference in fact makes no difference in law, as is shown on page 642 of Meade v.Saunders: "In other words, if he did look he was bound to see the truck and was negligent as a matter of law in stepping in front of it; and if he did not look, his negligence as a matter of law is none the less apparent."

Barnes v. Ashworth, (Va.) 153 S.E. 711, comforts the majority opinion by dicta only, as (a) point 17 of its syllabus is: "Person cannot shut his eyes to danger in blind reliance on another without assuming consequences", and (b) judgment was entered in the supreme court for defendants because of the contributory negligence of Barnes' decedent. The majority praises the dicta in that case as "an exhaustive discussion". I find no special mark of lucubration in the opinion. The "discussion" refers to Mosso v. Stanton Co., 75 Wash. 220, L.R.A. 1916A 943, (a leading case) as holding that "the doctrine of the last clear chance has no application, unless the negligence of the plaintiff has either terminated or culminated in a situation of peril from which the exercise of ordinary care on his part would not thereafter extricate him." The "discussion" then cites in all some ten Virginia decisions (without mentioning the McGowan case) from which it apprehends that the application of the doctrine has been extended much farther in Virginia than in some of the other states. The "discussion" gives no reason for the Virginia extension, but in fact says that some of the Virginia decisions are "too broad and misleading" and winds up by adopting certain requirements enumerated in the opinion of Rooney v. Levinson, 95 Conn. 466,469, 111 A. 794, 795. I have already demonstrated that the Connecticut court does not countenance the majority conclusion and the Rooney case is no exception, holding: "In the present case the evidence showed an automobile going west, colliding at a street intersection with a motorcycle going south, the owner of each claiming that the other vehicle was being driven at an excessive rate of speed; held, that the situation thus disclosed furnished no basis for the application of the last-clear-chance doctrine." It is hard to conceive why the majority should rely on dicta in "the exhaustive discussion" of the Virginia case, rather than on the ruling in the Connecticut case to which the Virginia decision finally turns. Why drink far down the stream, when the source is available?

In passing I will add that in recent years a statute has been enacted by the legislature of Virginia which prevents the contributory negligence of an employee of a common carrier from barring a recovery for personal injuries. 1930 Va. Code, sec. 5792. I am apprehensive that this statute has colored the view of the Virginia courts in other cases involving personal injuries, and I do not consider the more recent Virginia decisions on the doctrine of contributory negligence as Simon-pure as of yore.

It is true that Judge Thompson warms up to the doctrine of comparative negligence in sec. 1467 of his Commentaries on Negligence, quoted in the majority opinion. But the majority overlooks that this learned author approves and illustrates the rule that the plaintiff cannot recover when both parties are contemporaneously and actively at fault, as follows: "The traveller fails to exercise his faculties to discover the approach of a train, and those in charge of the train fail to give the proper signal on approaching the crossing. When he discovers the train on the one hand, and when the trainmen discover him on the other, it is too late to avoid the collision. In such a case, unless the doctrine of contributory negligence is abolished, there can be no recovery. The negligence of each is a proximate cause of the catastrophe; the negligence of one is just as near the catastrophe as that of the other." Sec. 237. See also sec. 1471.

It therefore appears that the majority opinion is supported fully by only the decisions of Kentucky, Missouri and by one decision in Virginia (McGowan v. Tayman); that the Kentucky decisions are based on "the exploded heresy of comparative negligence" (Johnson v. Stewart, 62 Ark. 164, 169); that the Missouri decisions are influenced by legislative enactment; and that the Virginia decision is isolated by the later case ofMeade v. Saunders. It seems to me that the Kentucky decisions, the Missouri statute and the lone Virginia case (and a few other irregular decisions here and there) afford the majority no justification for nullifying the common law doctrine of contributory negligence (Graybill v. Clancy, (Okla.) 291 P. 87, 88), and for opposing the otherwise settled view that the doctrine of constructive knowledge does not apply in cases of actively concurring negligence. "Now it must be apparent upon even a slight analysis of the rule (last clear chance) that it can be applied only in cases where the negligence of the defendant is proximate and that of the plaintiff remote; for if the plaintiff and the defendant both be negligent and the negligence of both be concurrent and directly contributory to produce the accident, then the case is one of contributory negligence pure and simple." Drown v. Tr.Co., (Ohio) 118 Am. St. Rep. 844, 849; Aiken v. Metcalf, supra;Blanchette v. Ry. Co., (Me.) 136 A. 116, 118; Dyerson v. R.R. Co., supra; Leftridge v. Seattle, supra; Bourett v. Ry. Co., (Ill.) 121 N.W. 380; Evans v. Express Co., 122 Ind. 362; anno. 55 L.R.A. 465; note 36 L.R.A. (N.S.) 958-9; note 45 L.R.A. (N.S.) 896; note L.R.A. 1916A 944-5; 3 Harvard Law Rev. 263, 276; 24 Yale Law Journal 331-2; 45 C. J., subject, Negligence, sec. 542; 20 Rawle C. L., subject, Negligence, sec. 116; Beach on Contributory Negligence, sec. 56; Shearman Redfield, The Law of Negligence, (6th Ed.), sec. 101.

The majority opinion would avoid this crushing weight of authority on the theory (according to the opinion) of "superadded circumstances which are of outstanding nature and controlling importance," which "should have put the defendant on guard; his senses should have been aroused; he should have been on the alert." Such strong words as "outstanding" and "controlling" are not aptly used unless the majority is of opinion that the "superadded circumstances" were equivalent to actual notice to defendant of what followed. If of such opinion what occasion is there for the majority to resort to an extension of the doctrine of imputed knowledge? Why turn to a strange minority faith when it is settled law that if there is time to prevent an accident concurring negligence is not a bar in case of actual knowledge? The circumstances mentioned follow (enumeration mine): "The admission by the defendant (1) that he saw a girl or women alight from the standing bus; (2) that he knew that it was unlikely that the passenger would leave the highway to the south; that (3) he knew that a number of persons resided on the opposite side of the highway from where the girl or woman left the bus." I cannot see that the fact (1) of Mrs. Smith alighting from the bus to the berm of the highway has any more significance than if she had come out of a house or other building to the berm, or if she had been walking on the berm without defendant's seeing where she came from. The fact that she started walking along the berm simply imported that she was going somewhere, and of itself can be no more singular than the conduct of any other person walking on the sidewalk or the highway. The majority opinion would amplify that circumstance by the alleged admission of defendant (2) "that he knew that it was unlikely that the passenger would leave the highway to the south." This charge against the defendant is based solely upon his testimony as follows: "Q. You knew from the location of the land there, and the ditch between the road and the railroad, that she (Mrs. Smith) could not cross directly from that point to any of the houses on your left, could she? A. No. She would not be apt to cross that ditch and climb the bank." It will be noted that this question and answer apply to crossing the ditch directly at the place the bus stopped. Elam McVaney, one of plaintiff's own witnesses, testified (without contradiction or explanation) that people did cross the railroad track from the highway "on up above" where the bus stopped. The opinion of the defendant that Mrs. Smith would not "cross that ditch and climb the bank" or cross the railroad directly from the point where the bus stopped, did not exclude the idea that she might cross "on up above." It is true (3) defendant knew that a number of persons resided north of the highway, yet (a) it appears from the testimony of McVaney that about the same number resided south of the highway and (b) it does not appear that defendant knew Mrs. Smith or where she resided. Consequently, I contend that the answer of defendant above, does not warrant the broad construction given it by the majority, and that the so-called "outstanding" facts could not have impressed the defendant with any definite idea of the direction Mrs. Smith would take.

While the majority opinion, in more than one place, says that the circumstances "should have put the defendant on guard," yet the opinion no where specifies against what he should have been on guard. Had this unfortunate lady been feeble-minded or deaf, and had given indication to the defendant of these afflictions or that she was absent-minded, then it might be justly said that the defendant should have been on guard against her lack of care in crossing the road. But there was nothing in her bearing or conduct when he observed her at the side of the bus to warn him that she would not proceed as a normal person should. Assuming that the circumstances should have impressed him with the idea that Mrs. Smith would cross the road, yet if there was no indication that she might cross in a negligent manner, there was nothing to make him particularly "alert" or "arouse his senses beyond the ordinary" as the opinion charges. Without special warning that Mrs. Smith was about to expose herself to danger from his car he could owe her no more than the general care he owed all pedestrians. Ind. Tr. Co. v.Croly, 54 Ind. App. 566, 579, 580.

If the circumstances preceding Mrs. Smith's attempt to cross the road were not sufficient to warn the defendant that she might proceed in a negligent manner, then the circumstances have no proper part logically in applying the doctrine of the last clear chance. "The inquiry involved in the application of this doctrine of the last clear chance begins only when the injured person has to come into a position of actual present peril; it is not concerned with earlier situations or happenings. This distinction is an important one and should be constantly borne in mind, for otherwise the place occupied by contributory negligence in our law is lost sight of."Bujnak v. Connecticut Co., 94 Conn. 468. "The doctrine of the last clear chance rests upon the principle that there is something in the plaintiff's condition or situation to admonish the defendant that he is not able to protect himself." RoanokeCo. v. Carroll, supra, cited in support of the majority opinion. Under other authority there cited, a motorist has the right to assume that a pedestrian preparing to cross the highway will do so in the exercise of due care. "The operator of the train (or the automobile) has the right to presume that the person will protect himself and until it appears that he cannot or will not exercise his powers to protect himself, the operator is free from negligence." Green v. Ruffin, supra. Even the Missouri court holds that the doctrine of the last clear chance does not apply to a collision between a vehicle and a pedestrian "if the motorman was not warned by the pedestrian's demeanor that he was about to endanger himself." Haffey v. Ry.Co., (Mo.) 135 S.W. 987. This is the law generally. "In the absence of knowledge to the contrary or some fact which ought to arouse his suspicion, motorman of electric train has a right to presume that one seen at a public crossing is in possession of all of his senses, and that care for his own safety will induce him to use them and to act on the warnings conveyed through them." Emmons v. S. P. Co., 97 Or. 263; 2 Rawle C. L., subject, Automobiles, sec. 20; annotation 69 L.R.A. 550; Thompson, Comm. on Negligence, White's Supplement, sec. 1476.

The majority opinion does not mention this presumption which is ordinarily the lawful right of a motorist. Failure to accord this right to defendant may be due to the conception of his conduct by the majority as "inexcusably negligent." I do not get that conception from the evidence. The opinion states that the speed of defendant's car at the time of the accident was 20 miles an hour and that the car could have been stopped in its own length. If so, the speed was lawful and the car was under control. Unless motorists be required to have the gift of divination, the defendant was not negligent in failing to anticipate that Mrs. Smith would be oblivious to danger. The majority opinion takes it as established "that had defendant been looking he could have seen Mrs. Smith in time to avoid the accident." I presume what the majority means is that if the defendant had been looking out specially for Mrs. Smith he could have seen her in time. But it appears from the evidence that after defendant lost sight of Mrs. Smith (at the side of the bus) his attention became fixed on passing an approaching car, which was within 100 to 150 feet at the time of the accident. Unless the majority can say that defendant was in no danger from and owed no care to the oncoming car, then it cannot claim that his observation of the car was culpable; and unless the majority can say that defendant was forewarned of Mrs. Smith's negligent deportment, then it should not censure him for watching that car and thus failing to note her lateral approach. The vision of Argus exists only in mythology.

When Mrs. Smith reached a point of danger, the center of the road, she was then some 40 or 50 feet in advance of defendant's car, according to the majority opinion. At 20 miles an hour, the car was traveling at the rate of 29 1/3 feet a second. At that speed, less than two seconds passed from the time Mrs. Smith was at the center of the road and the moment of impact. The main witness for plaintiff says that Mrs. Smith was about 15 feet from the car when she arrived directly in front of it. If so, less than one second elapsed after the decedent stepped into the pathway of the automobile until she was struck. Even under the doctrine of imputed knowledge, where was theappreciable interval giving defendant time to have acted effectively? Barnes v. Ashworth, supra, gives the following statement of the factors necessary to make such an opportunity: "The last clear chance implies thought, appreciation, mental direction and the lapse of sufficient time to effectively act upon the impulse to save another from injury." There must have been an appreciable interval of time between their actual or imputed knowledge of the situation and the collision." Waller v. Ry. Co., 108 W. Va. 576, 583. This requirement is stressed in Ry. v. Thompson, 136 Va. 597, as follows: "It should and must be emphasized that a plaintiff is not entitled to recover under this doctrine upon a mere peradventure. He has no right to hold the defendant liable merely upon showing that perhaps, if the defendant's agents had responded properly, promptly, instantaneously, he might have been saved. The burden is upon him to show affirmatively by a preponderance of the evidence, which convinces the average mind that by the use of ordinary care, after his peril was discovered, there was in fact a clear chance to save him. It is insufficient to show that there was a mere possibility of so doing." It seems to me that under these authorities the interval which defendant, with imputed knowledge, had to avert the tragedy was too brief for aught but speculation and does not sustain affirmatively a further imputation of opportunity in fact.

The plaintiff's case was tried on two theories: one, that Mrs. Smith was not in fact negligent, and the other that, if so, the defendant had the last clear chance to avoid the accident. The question of her negligence was submitted to the jury with involved instructions of law. (Plaintiff's instructions 7 and 8.) This seems prejudicial error to me. There was no evidence whatever supporting the theory that Mrs. Smith was not negligent, yet the jury could well have inferred from the instructions that the law held her blameless.

The majority cites Ambrose v. Young and Jefferies v. Ashcraft in support of its position as to the voluntary testimony indicating that the defendant carried insurance. Witnesses for defendant stated that Mrs. Smith came almost immediately from behind the bus right into the path of the automobile. There is no preponderance of the witnesses numerically for plaintiff, and no specific reason for giving credence to one set of witnesses over the other. This is illustrated by the fact that a former trial resulted in a hung jury. These circumstances differentiate this case from Ambrose v. Young and Jefferies v.Ashcraft, and I am of opinion that evidence of the defendant having insurance did prejudice him before the jury, no matter how casually that fact appeared.

As I view this unfortunate affair, no circumstance impressed on the defendant any special care for Mrs. Smith or justifies the majority in denying the defendant the ordinary presumption in favor of a motorist. The duty of each to look out for the other was correlative. Each was equally capable of exercising care, and each was equally charged with common knowledge of the use of the highway (at the point of collision) by pedestrians and automobiles. The inattention of each was not successive, but was concurrent until too late to prevent the accident. Neither saw the other (in time) for the identical reason that neither looked for the other; and there was no last clear chance in fact open to one, that was not open to the other. If defendant was negligent, Mrs. Smith was equally negligent, and her negligence would have prevented a recovery under the rule of contributory negligence as it has heretofore been pronounced in this jurisdiction.

Accordingly I dissent.